SZKOJ v Minister for Immigration
[2007] FMCA 1794
•28 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKOJ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1794 |
| MIGRATION – No appearance by applicant at the hearing – application dismissed – application to reinstate – no appearance – application dismissed – further application to reinstate – abuse of process – no reasonable prospect of successfully prosecuting the claim – no useful purpose would be served by reinstating application – application dismissed. |
| Federal Magistrates Court Rules 2001, r.13.03A(c) |
| SZBEW v Minister for Immigration [2005] FMCA 999 |
| Applicant: | SZKOJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1352 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 28 June 2007 |
| Date of last submission: | 28 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 28 June 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms M. Mafessanti of Clayton Utz |
ORDERS
The application for reinstatement is dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $400.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1352 of 2007
| SZKOJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant failed to appear before the Court on 17 May 2007. On that day the application was dismissed pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001.
The applicant then applied to reinstate his application, and the matter was set down for hearing on 31 May 2007 at 10.15 am. The applicant failed to appear at that hearing, and the application was again dismissed pursuant to r.13.03A(c).
The applicant has now applied again to reinstate his application. The Court applies the decision of Driver FM in the case of SZBEW v Minister for Immigration [2005] FMCA 999 at [6] as follows:
The reinstatement of an application following dismissal for non appearance should not occur as a matter of course. The authorities indicate that exceptional reasons need to be advanced. I would need at least to be satisfied that there was a sufficient explanation for the non attendance of the applicant at court…I would also need to be satisfied that there would be some useful purpose to be served in reinstating the application.
The applicant states in his affidavit (filed 18 May 2007) that he went to Queen’s Square at 10:00am on 17 May 2007. The Court notes that the applicant’s application states that the matter is listed for First Court Date on “Thursday, 17 May 2007 at 9:30am at John Maddison Tower, Levels 6 and 7, 88 Goulburn Street, Sydney”. The applicant arrived late and at the wrong place on 17 May 2007.
Regarding the 31 May 2007 hearing, the applicant states that he arrived late (applicant’s affidavit filed on 12 June 2007). Arriving late for one hearing may be excusable; arriving late for a second hearing is not. The applicant has had two opportunities to put his case.
The Court will examine whether some useful purpose would be served by reinstating the application.
All grounds in the application seek to contest and review findings of fact and credibility and the rejection of evidence by the Tribunal. As stated by the Federal Court of Australia in Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]:
The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.
The Court also applies the decision in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, where the Full Court of the Federal Court of Australia decided at [10] as follows:
In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal.
The application raises no valid ground for judicial review. The application is therefore foredoomed to fail.
The applicant has no reasonable prospect of successfully prosecuting his claim. No useful purpose would be served by reinstating the matter.
The applicant is abusing the processes of the Court.
The application for reinstatement is dismissed.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: Mary Giang
Date: 24 October 2007